331.89 
M55S 


• 


UNIVERSITY  OF  ILLINOIS  LIBRARY 

AT  URBAHA-CHAMPAI6N 

STACKS 


STRIKES  AND  PUBLIC  UTILITIES: 

A  REMEDY. 

BY 
WALTER  GORDON  MERRITT 


A  condensed  version  of  this  Monograph  appears 
in  "THE  OUTLOOK"  for  January  8th,  1910,  and 
this     pamphlet     is     published    with    its     permission. 


Published  fot   Circulation  by  the 

American  Anti-Boycott  Association 

27  WILLIAM  STREET        -        NEW  YORK  CITY 


STRIKES  AND  PUBLIC  UTILITIES:  A  REMEDY 


The  occurrence  of  a  considerable  number  of  strikes  on  public 
utilities  during  the  last  year,  with  the  attendant  loss  and  incon- 
venience to  the  public,  renders  timely  a  review  of  this  evil  and 
a  search  for  a  remedy.  While  most  of  these  strikes  were  ter- 
minated without  causing  great  public  affliction  or  attracting  any 
considerable  public  attention,  the  comparatively  recent  disturb- 
ances in  Georgia  and  Philadelphia  developed  to  serious  and 
menacing  proportions  and  commanded  the  attention  of  the  whole 
country. 

The  Georgia  Railroad,  like  all  of  the  important  railroads  in 
this  country,  is  an  interstate  commerce  utility  over  which  the 
Federal  Government  may  exercise  control  under  the  broad  con- 
stitutional power  to  control  and  regulate  interstate  commerce. 
On  all  matters  directly  affecting  the  conduct  of  interstate  com- 
merce Congress  may  legislate  to  the  exclusion  of  State  interfer- 
ence. For  this  reason  the  strike  on  the  Georgia  Railroad  raises 
the  question  of  the  relation  of  our  Federal  Government  to  labor 
controversies  that  may  arise  on  any  of  our  numerous,  important, 
and  almost  indispensable  railroads.  The  Georgia  Railroad  owns 
J^and  operates  about  300  miles  of  road,  but  its  operations  were 
totally  suspended,  and  the  use  of  its  tracks  for  commerce,  upon 
which  the  people  had  been  taught  to  rely  as  a  necessity,  was 
absolutely  abandoned  on  account  of  a  dispute  concerning  about 
75  firemen.  The  strike  lasted  twelve  days,  and  for  five  days 
not  a  wheel  turned  on  the  whole  system.  In  this  short  time  all 
transportation  in  that  section  was  generally  interrupted,  includ- 
ing the  delivery  of  the  United  States  mail,  business  was  seriously 
interfered  with,  entailing  immense  losses,  and  physical  suffering 
became  so  imminent  that  there  were  frantic  appeals  from  dif- 
ferent communities  on  account  of  the  threatened  famine.  The 
strike  was  finally  settled  by  a  compromise  on  the  arrival  and 
interposition  of  a  member  of  the  Interstate  Commerce  Commis- 
sion, who  went  to  Georgia  to  investigate  the  situation  in  the 
performance  of  duties  imposed  on  him  by  the  Federal  statutes.1 


l  The    Erdman    Law    was    passed    by    Congress    in    1898    and    provides    machinery 
|    for  voluntary  arbitration.     Three  arbitrations,  including  that  of  the  Georgia  Railroad, 
have  been   effected  under  it. 


P 


6512 


The  strike  in  the  City  of  Philadelphia  was  on  the  local  trac- 
tion lines,  and  accordingly  could  only  be  reached  by  State  laws 
and  State  authority  unless  it  had  become  such  a  general  insur- 
rection as  to  call  for  the  intervention  of  Federal  troops.  It  was 
an  astounding  sight  to  see  that  third  city  of  this  country,  and  the 
city  of  men  of  traditional  peace,  in  disorder  and  chaos,  many 
of  its  streets  disturbed  by  violence  and  much  of  its  business 
interrupted  for  a  full  week,  because  of  a  strike  on  a  street  railway 
system.  When  one  beholds  a  usually  orderly  city  with  its  normal 
life  suspended,  with  property  openly  destroyed  on  its  streets  in 
defiance  of  law,  and  with  lives  of  its  citizens  endangered  by 
assaults,  a  natural  love  of  law  and  order  demands  some  reason- 
able safeguard  against  a  repetition  of  similar  happenings. 

But  these  two  disturbances,  confined  to  comparatively  small 
areas,  but  mildly  suggest  the  evils  and  dangers  that  might  be 
caused  by  strikes  on  public  service  corporations.  The  terrors 
of  the  anthracite  coal  strike  of  1902  are  still  unforgotten,  but 
the  strike  of  the  American  Railway  Union  in  the  early  summer 
of  1894  above  all  others  demonstrates  the  dangerous  possibilities. 
It  will  be  remembered  that  this  great  strike  grew  out  of  an  effort 
to  aid  the  striking  employees  of  the  Pullman  Car  Company  by 
a  combined  refusal  of  railroad  employees  of  many  different  com- 
panies to  handle  or  haul  any  cars  made  by  that  company.  It 
resulted  in  the  sudden  abandonment  of  the  railroads  by  about 
100,000  men  and  the  paralysis  of  some  twenty-four  lines  center- 
ing in  Chicago.  It  was  not  a  local  strike  limited  to  a  city  or 
State,  but  a  vast  National  disturbance  extending  throughout  the 
whole  Middle  West  and  the  Far  West  and  causing  lawlessness 
and  disorder  wherever  the  telegrams  of  the  union  reached. 

The  situation  is  best  revealed  by  reviewing  some  of  these 
telegrams  exchanged  between  Debs  and  Phelan,  the  two  principal 
union  leaders : 

Debs  to  Phelan : 

"June  27,  1894, 
"Indications  are  that  all  western  lines  will  be 
tied  up  solidly  before  sunset  to-day." 

Phelan  to  Debs : 

"June  28,  1894. 
"I    cannot    keep    others    out    if    Big    Four    is 
excepted.     The  rest  are  emphatic  on  all  together 
or  none.     The  tie-up  is  successful." 

Debs  to  Phelan : 

"June  29,  1894. 
"About  25  lines  now  paralyzed.     More   follow- 
ing.   Tremendous  blockade." 

4 


Debs  to  Phelan: 

"July  2,  1894. 
"Knock  it  to  them  hard  as  possible.    Keep  Big 
Four  out  and  help  get  them  out  at  other  places." 

Phelan  to  Debs : 

"July  2,  1894. 
"Going  out  all  round.     Firemen  a  unit.     Will 
soon    be    an    avalanche    to    us.      Working   outside 
points." 

Debs  to  Phelan : 

"July  2,  1894. 
"Hold   Big  Four   solid.     Going  out  to-day  at 
every  point.  Gaining  ground  rapidly." 

Debs  to  Phelan : 

"July  2,  1894. 
"Advices  from  all  points  show  our  position 
strengthened.  Baltimore  &  Ohio,  Pan  Handle,  Big 
Four,  Lake  Shore,  Erie,  Grand  Trunk  and  Michi- 
gan Central  are  now  in  fight.  Take  measures  to 
paralyze  all  those  that  enter  Cincinnati.  Not  a 
wheel  turning  on  Grand  Trunk  between  here  and 
Canadian  line." 

These  telegrams  tell  only  half  the  story,  for  they  naturally 
disclose  nothing  of  the  acts  of  the  lawless  mobs  in  different  parts 
of  the  country.  To  understand  that  aspect  of  the  situation  one 
should  read  the  mass  of  letters  and  telegrams  that  passed  be- 
tween Attorney-General  Olney  and  the  marshals  and  district 
attorneys  of  the  many  States  and  territories  frantically  wiring 
for  instructions  and  funds  to  enforce  the  laws  against  the  ruling 
mobs  and  the  fast  spreading  disorders.  Nothing  short  of  the 
combined  force  of  our  army  and  judiciary  was  able  to  re-establish 
the  supremacy  of  law. 

Now,  the  simple  but  appalling  truth  is,  that  there  is  nothing 
in  our  laws  to-day  which  forbids  a  strike  as  far-reaching  and 
as  disastrous  as  the  coal  strike  of  1902  or  the  railroad  strikes  of 
1894,  or  denies  the  right  of  a  combination  of  men  to  create  such 
a  critical  condition.  This  does  not  mean  that  the  Debs  strikes  of 
1894  were  lawful  or  that  every  railroad  strike  is  lawful  any  more 
than  it  means  that  every  strike  in  an  ordinary  industry  is  lawful, 
but  it  does  mean  that  there  has  been  no  distinction  drawn  between 
strikes  on  public  service  corporations  and  strikes  on  ordinary 
corporations,  and  that  the  law,  while  imposing  certain  peculiar 
obligations  on  the  employer  in  a  public  service  corporation  to 
accommodate  the  public,  has  illogically  refrained  from  impress- 
ing the  same  obligation  on  the  employees  or  placing  any  com- 
parative limitation  on  their  liberty. 


It  is  not  improbable  that  a  strike  so  timed  and  arranged  as 
to  necessarily  cause  immediate  loss  of  life  and  property  would 
be  declared  unlawful,  whether  it  affected  a  public  service  corpora- 
tion or  not.  This  may  be  and  should  be  the  rule  as  to  a  strike 
of  the  pumpmen  in  the  mines,  when  a  combined  cessation  of 
their  work  will  result  in  flooding  and  ruining  the  property,  and 
such  should  be  the  rule  as  to  a  strike  of  trainmen  who  abandon 
their  train  in  a  way  that  would  endanger  life  and  property.  But 
this  principle  has  never  been  generally  recognized,  and  the  pos- 
sibility of  its  future  recognition  affords  little  or  no  protection 
against  the  evil  in  question,  as  the  public  may  at  any  time  be 
deprived  of  the  use  of  public  facilities  by  a  strike  which  does 
not  offend  it.  The  enforcement  of  such  a  principle  of  law  would 
in  no  way  prevent  a  general  and  almost  simultaneous  with- 
drawal from  service  by  prearrangement  of  all  railroad  employees 
as  rapidly  as  the  men  ran  their  trains  into  some  station  or  con- 
venient piece  of  sidetracking. 

There  are  also  other  kinds  of  strikes  that  are  unlawful  and 
can  be  prevented,  whether  on  public  service  corporations  or 
private  corporations.  The  railroad  strikes  in  1894,  which  were 
sympathetic  and  took  the  form  of  a  boycott  against  the  Pullman 
cars,  were  unlawful  for  that  reason,  as  is  also  an  analogous  strike 
of  employees  in  a  shoe  factory  because  they  are  unwilling  to  use 
racks  made  in  a  non-union  woodworking  mill.  The  same  is  true 
under  many  rulings  of  a  strike  to  secure  the  employment  of  union 
men  exclusively  and  establish  a  closed  shop.  All  these  strikes 
are  equally  unlawful  in  whatever  business  they  occur,  but  their 
illegality  is  in  no  way  inconsistent  with  the  startling  proposition 
that  a  peaceful  strike  seeking  higher  wages  and  better  conditions 
of  employment  for  the  strikers  themselves  may  at  any  time  ter- 
minate our  primary  fuel  supply,  leave  our  cities  in  darkness, 
suspend  the  operations  of  our  street  railways  and  paralyze  the 
railroad  operations  of  the  country,  as  was  done  in  1894,  thereby 
causing  enormous  business  losses  and  physical  suffering.  The 
thought  of  an  obstinate  and  protracted  strike  of  railroad  em- 
ployees is  fearful,  and  its  far  reaching  consequences  are  unim- 
aginable. It  would  be  difficult  to  break  the  union  monopoly  of 
skilled  engineers  and  trainmen  and  the  attempt  to  operate  trains 
with  inexperienced  hands  would,  to  say  the  least,  be  hazardous. 

Generally  speaking,  we  have  been  exceedingly  fortunate  in 
the  number  and  extent  of  strikes  on  public  service  corporations 
since  1894,  and  have  not  by  any  means  experienced  the  fullness 
of  disaster  and  disturbance  which  this  unremedied  situation 
might  produce.  The  fear  of  a  hostile  public  opinion  has  deterred 
both  employer  and  employee  from,  provoking  a  situation  which 
would  cost  the  general  public  both  convenience  and  safety.    One 


constantly  reads  in  the  daily  papers  apprehensive  news  items  and 
editorials  concerning  the  proposed  strike  of  certain  switchmen, 
firemen,  or  engineers,  as  the  case  may  be,  but  the  number  of 
these  threatened  strikes  which  actually  occur  is  small,  although 
our  escapes  have  been  narrow.  There  is,  however,  no  security 
against  disturbances  under  leadership  such  as  now  dominates  our 
labor  unions,  and  history  proves  that  good  management  and 
benevolent  treatment  of  employees  are  but  small  safeguards 
against  conflicts,  as  witness  the  tribulations  of  the  Utopian  Na- 
tional Cash  Register  Company,  of  Dayton,  Ohio.  Even  so  con- 
servative and  intelligent  a  leader  as  P.  M.  Arthur,  former  chief 
executive  of  the  Locomotive  Engineers,  declared  a  boycott  against 
the  Ann  Arbor  Railroad  and  ordered  strikes  on  connecting  lines 
because  those  companies  were  attempting  to  perform  the  legal 
duty  imposed  upon  them  as  common  carriers,  by  hauling  the 
cars  of  the  Ann  Arbor  Railroad.  This  combination,  which  was 
unlawful  for  many  reasons,  was  enjoined,  but  if  a  leader  of  the 
type  of  Mr.  Arthur  will  initiate  such  a  combination  there  is  good 
reason  for  providing  further  protection  against  it  and  the  more 
frequent  type  of  strike  which  the  law  does  not  now  forbid.  The 
alarming  strike  of  the  postal  employees  in  France  also  indicates 
the  extent  of  the  dangers  which  confront  us.  A  strike  of  gov- 
ernment employees,  or  a  strike  of  a  monopoly  like  a  railroad, 
is  not  like  a  strike  against  competing  companies  which  tests  only 
the  financial  endurance  and  courage  of  employer  and  employee, 
but.is  a  strike  against  society.  As  railroads  come  more  and  more 
under  government  domination,  all  such  strikes  become  more  like 
a  rebellion. 

Neither  is  the  spirit  of  compromise,  which  has  avoided  many 
strikes  on  railroads,  and  of  which  we  have  just  spoken,  without 
its  serious  objections.  These  compromises  and  makeshifts,  born 
of  a  fear  to  encounter  public  wrath,  if  the  public  service  is  tem- 
porarily discontinued  by  a  strike,  have  doubtlessly  increased  the 
cost  of  operation,  interfered  with  the  discipline  of  employees  and 
impaired  the  efficiency  and  safety  of  the  service.  Rather  than 
provoke  a  strike  an  employer  will  yield  the  enforcement  of  a  rule 
which  may  be  best  for  the  public  safety  and  convenience.  The 
relation  of  employer  and  employee  on  a  railroad  should,  by  reason 
of  the  peculiar  character  of  the  service,  embody  much  of  the 
character  of  strict  obedience  which  prevails  between  a  captain 
and  a  private  in  an  army.  It  is  not  possible  to  carry  out  this 
conception,  however,  if  the  employee  is  partially  in  control  and 
the  employer  is  fearful  of  provoking  a  strike.  For  this  reason, 
as  well  as  others,  there  would  be  an  advantage  to  the  public  in 
having  the  grievances  of  employees  corrected  by  some  other 
method  than  the  right  to  strike  and  the  fear  of  its  exercise.  An 
adjustment   between   employer   and   employee,   effected   through 


mutual  fear  and  without  the  intervention  of  a  third  party,  is  more 
regardful  of  the  interests  of  the  two  rival  parties  than  of  the 
public  good. 

It  is  not  easy  to  prescribe  a  practical  cure  for  the  evils  of 
strikes  on  public  service  corporations,  and  a  discussion  of  the 
situation  must  not  begin  with  preconceived  convictions,  but  in 
the  broad  receptive  spirit  which  carefully  weighs  all  suggestions 
before  it  accepts  or  rejects.  There  is,  however,  one  conviction 
on  which  this  article  proceeds  at  the  risk  of  appearing  to  violate 
the  writer's  own  rule.  This  is  the  conviction  that  there  is  a  real 
evil  which  requires  a  remedy  and  that  the  remedy  must  be  radical 
and  drastic  enough  to  effectually  prevent  all  strikes  on  public 
service  corporations.  If  mild  methods  like  conciliation  will  sub- 
stantially attain  this  end  they  are  more  to  be  desired  than  legis- 
lative interference  of  a  more  compulsory  nature,  but  if  they  are 
not  sufficient,  more  radical  measures  will  be  welcome,  as  the 
means  must  be  adequate  for  the  end.  It  is  not  believed  that  arly 
evil  involved  in  a  well-conceived  remedy  will  equal  the  evil 
sought  to  be  reached.  One  who  fairly  balances  the  dangers  of 
the  two  situations  must  choose  legislative  interference  as  the 
lesser. 

The  necessity  for  dealing  with  this  situation  is  immediate. 
Strikes  and  large  combinations  are  not  easy  to  control  by  the 
strong  arm  of  the  law  if  they  become  the  settled  habit  and  prac- 
tice of  a  people,  for  in  the  number  of  persons  involved  they 
become  in  some  cases  in  the  nature  of  an  insurrection,  and  the 
difficulty  of  punishing  each  offender  is  great.  On  the  other  hand, 
laws  passed  against  combinations  before  they  have  been  too  long 
an  accepted  privilege  are  more  readily  acquiesced  in.  Generally 
speaking,  the  public  conception  of  the  right  rule  of  conduct  does 
not  transgress  our  laws,  and  a  law  against  a  certain  kind  of 
combination  leads  the  public  to  abandon  that  combination  and 
regard  it  as  something  wrong.  It  is  in  this  way  educational  in 
the  highest  degree.  For  this  reason  it  would  have  been  better 
for  this  country  if  it  had  long  ago  adopted  a  system  of  legislation 
restricting  strikes  on  public  service  corporations  as  other 
countries  have  done,  and  for  the  same  reason  further  delay  is 
objectionable,  as  it  will  lead  the  working  people  to  grow  stronger 
and  more  determined  in  their  assertion  of  the  right  to  strike. 
Already  the  strike  seems  to  be  regarded  as  a  sacred,  inviolable 
and  unrestricted  right,  and  it  is  difficult  to  convince  people  that 
it  may  be  legal  or  illegal,  depending  upon  the  object  to  be  attained 
and  the  methods  of  carrying  it  out. 

In  discussing  the  various  remedies  which  may  suggest  them- 
selves, it  must  be  borne  in  mind  that  a  suggestion  made  as  to 
public  service  corporations,  where  the  public  interest  is  peculiar 


and  the  obligations  of  the  proprietors  extraordinary,  is  in  no 
way  a  necessary  criterion  for  ordinary  private  corporations  or 
an  ordinary  business.  The  law  has  always  treated  quasi  public 
corporations  as  a  class  by  themselves,  impressed  with  certain  obli- 
gations to  the  public  which  differentiate  them  from  ordinary 
corporations.  When  a  man  utilizes  his  private  carriages  and 
horses  in  connection  with  a  public  stage  line  he  dedicates  them 
to  the  public  service  and  forfeits  much  of  the  independence  of 
control  which  ownership  of  property  usually  implies.  He  can- 
not discontinue  the  service  unreasonably  and  he  cannot  refuse  to 
furnish  accommodations  to  all  the  public,  friends  or  enemies, 
who  desire  to  travel  by  his  stage.  The  same  principle  applies  to 
railroads,  street  railways,  lighting  plants  and  many  other  facilities 
upon  which  public  safety  and  convenience  and  the  transaction  of 
business  is  peculiarly  dependent.  The  absolute  control  of  the 
property  is  surrendered  by  the  investors  when  they  undertake  to 
supply  the  public  with  such  important  facilities.  The  franchise 
may  also  be  forfeited  if  operations  are  discontinued.  These  dis- 
tinctions, which  apply  also  to  innkeepers  and  other  kinds  of 
public  utilities,  are  too  well  known  and  have  been  too  long 
established  to  require  further  elaboration.  They  rest  upon  a 
sound  and  unquestioned  rule  of  public  policy.  It  is  the  more 
strange,  therefore,  that  the  law  has  not  extended  this  distinction 
into  the  relations  of  men  employed  by  railroads  and  other  public 
service  corporations  and  deprived  them  of  such  liberty  as  would 
make  possible  a  sudden  and  disastrous  interruption  in  the  opera- 
tion of  public  utilities.  Judge  Jenkins,  in  a  decision  rendered2 
while  a  United  States  Judge,  but  which  was  much  criticized 
because  of  the  sweeping  injunction  granted,  saw  the  wisdom 
of  this  fundamental  principle,  and  said : 

"One  has  not  the  right  arbitrarily  to  quit  service 
without  regard  to  the  necessities  of  that  service. 
His  right  of  abandonment  is  limited  by  the  assump- 
tion of  that  service  and  the  conditions  and  exigen- 
cies attaching  thereto.  It  would  be  monstrous  if  a 
surgeon,  upon  demand  and  refusal  of  larger  com- 
pensation, could  lawfully  abandon  an  operation 
partially  performed,  leaving  his  knife  in  the  bleeding 
body  of  his  patient." 

and  again, 

"The  railway  is  a  great  public  highway.  Its  pri- 
mary duty  is  to  the  public.  In  the  interest  of  the 
public  it  must  be  kept  a  going  concern,  although  it 


2  See  Justice  Harlan's  opinion  in  Arthur  v.  Oakes,  63   Fed.,  310,  which  modified 
Farmers'  Loan  &  Trust  Co.  v.  Northern  Pacific  R.  Co.,  60  Fed.,  803. 


prove  unremunerative  to  the  shareholders.  Bond- 
holders and  shareholders  invest  their  money  in 
view  of  the  public  nature  of  the  enterprise.  Their 
rights  and  interests  are  subordinated  to  the  public 
duty  charged  upon  the  road.  And  so,  also, 
employees  in  entering  the  service  assume  obliga- 
tions co-extensive  in  kind  with  that  of  the  corpor- 
ation." 

It  would  seem  to  be  reasonable  to  provide  that  one  who 
entered  the  service  of  a  quasi  public  corporation  should  forfeit 
some  of  his  liberty  as  a  condition  of  his  employment  and  an 
assurance  of  the  performance  of  the  implied  obligation  he 
assumes.  Yet  the  truth  is  that  this  general  principle  laid  down 
by  Judge  Jenkins  has  never  been  adopted,  and  the  injunction  in 
support  of  which  he  gave  this  opinion  was  so  modified  on  appeal 
as  to  impliedly  overrule  and  nullify  it.  In  fact,  Mr.  Justice 
Harlan,  now  of  our  United  States  Supreme  Court,  expressly 
repudiated  this  principle,  holding  that  it  established  a  rule  of 
conduct  which  the  legislature  alone  could  prescribe.2  Thus,  while 
distinctions  have  been  drawn  between  quasi  public  corporations 
and  ordinary  corporations,  affecting  the  obligations  of  the  officers 
and  stockholders  in  many  ways,  these  distinctions  have  never 
been  extended  to  employees,  and  their  right  to  strike  is  as 
unlimited  when  they  are  employed  by  public  service  corporations 
as  it  is  when  in  other  employment.  The  advocacy  of  this  article, 
however,  like  the  theory  underlying  much  legislation  in  other 
countries,  is  that  a  distinction  should  be  drawn  by  the  legislature 
between  the  right  to  strike  on  public  service  corporations  and  the 
right  to  strike  on  ordinary  private  corporations ;  and  that 
employees  of  public  service  corporations  should  be  impressed 
with  special  obligations  to  the  public  as  suggested  by  Judge 
Jenkins. 

Various  experiments  have  been  tried  by  other  countries  to 
deal  with  this  situation,  and  probably  the  best  known  of  all  is 
the  Canadian  Industrial  Disputes  Investigation  Act  of  1907.  The 
immediate  cause  of  this  act  was  the  strike  of  the  coal  miners  of 
Alberta,  which  threatened  to  deprive  the  people  of  fuel£  The  act 
is  limited  to  public  utilities  and  does  not  attempt  to  prohibit 
strikes  except  to  enforce  their  temporary  postponement.  It  pro- 
vides for  a  reference  and  an  investigation  of  disputes  by  a  con- 
ciliation board  and  imposes  penalties  for  calling  a  strike  or 
declaring  a  lockout  during  the  hearings.  The  report  of  the  board 
is  then  made  public,  and  it  is  confidently  hoped  and  expected 
that  public  opinion,  crystalized  by  such  a  report,  will  effect  a 
settlement.  Undoubtedly  this  act  has  accomplished  a  measurable 
good  and  has  more  than  justified  its  enactment  for,  while  the 
results  are  partly  a  matter  of  speculation,  it  is  probable  that  a 

10 


large  number  of  strikes  have  been  avoided  in  this  way.  This  act 
also  reduces  the  disastrous  effect  of  a  strike,  for  it  gives  the 
employer  considerable  opportunity  to  prepare  for  the  emergency 
and  provide  other  employees  for  continuing  the  service  without 
interruption.  The  unions  may  well  object  that  it  emasculates  the 
strike  without  providing  for  any  other  means  of  correcting  their 
grievances,  for  a  strike  which  takes  place  after  an.  employer  has 
had  ample  time  to  prepare  loses  many  of  its  terrors. 

But  from  the  point  of  view  of  the  public  safety  and  con- 
venience, the  principal  fact  is  that  this  piece  of  Canadian  legis- 
lation does  not  prohibit,  and  has  not  entirely  prevented,  strikes. 
The  strike  of  the  Canadian  Pacific  Railroad  in  the  summer  of 
1908  is  proof  of  this  statement,  for  this  strike  took  place  after 
this  law  went  into  effect  and  the  board  of  conciliation  acting 
thereunder  had  reported.  Furthermore,  if  the  board  should  be 
equally  divided  or  almost  equally  divided  on  the  merits  of  any 
controversy,  its  report  would  scarcely  serve  to  focus  public  opin- 
ion to  any  great  extent.  The  act,  therefore,  is  satisfactory  as  far 
as  it  goes,  but  it  does  not  prevent  the  great  public  wrong  of  inter- 
rupting the  service  on  public  utilities,  and  is  in  that  way  open 
to  the  charge  of  inadequacy.  It  is  notable,  too,  that  when  the 
act  was  proposed  and  discussed  there  were  many  employers  and 
employees  who  felt  that  it  should  go  the  full  length  of  provid- 
ing compulsory  arbitration. 

The  plan  adopted  in  Victoria  is  very  suggestive.  It  provided 
that  any  employee  who  should  cease  to  discharge  the  duties  of 
his  employment  on  account  of  the  then  existing  strike  should  be 
considered  a  striker  and  should  forfeit  all  rights  to  any  pension 
fund  or  annuity,  as  well  as  any  legal  privileges  arising  out  of  his 
position.  Provisions  were  made  for  restitution  of  his  privileges 
in  the  discretion  of  the  railway  commissioners  with  the  consent 
of  the  governor  and  council,  but  the  privileges  were  so  valuable 
that  their  threatened  loss  might  well  act  as  an  effective  deterrent 
to  control  strikes. 

A  few  other  remedies  that  are  suggested  by  the  laws  of 
different  countries  may  well  be  mentioned  at  this  point.  Several 
European  countries  provide  that  railroad  employees  must  give  a 
notice  of  a  certain  number  of  days  of  their  intention  to  withdraw 
from  service.  Germany  denies  employees  of  railroads  the  right 
accorded  to  most  other  employees  of  organizing  trade  unions  for 
the  purpose  of  conducting  strikes.  In  Belgium  one  who  leaves 
the  employ  of  the  government  service  on  the  railroads  will  not 
be  reinstated.  France  provides  imprisonment  for  engineers  or 
firemen  who  abandon  their  posts  while  the  train  is  on  a  run.  In 
Italy  when  the  railway  employees  proposed  to  strike,  they  were 
told  that  they  would  be  regarded  as  public  employees  engaged 

11 


in  an  unlawful  combination  against  the  government.  Nether- 
lands imposes  a  penalty  on  any  official  or  employee  of  a  rail- 
road who  refuses  to  perform  his  duty  with  a  view  to  interrupting 
traffic.  Of  course,  in  some  of  these  countries  the  government 
owns  or  controls  the  railroads,  but  the  variety  of  legislation  on 
this  point  manifests,  nevertheless,  a  common  appreciation  of  the 
dangers  and  inconvenience  accompanying  strikes  on  public  service 
corporations  and  the  necessity  of  preventing  them.  Should  our 
country  remain  behind  these  others  in  enlightened  government  of 
this  kind? 

In  treating  this  subject  as  far  as  it  relates  to  the  United 
States  it  will  clarify  the  situation  if  at  the  outset  we  confine  our 
attention  to  interstate  railroads  and  the  attitude  of  the  United 
States  government  toward  them.  The  problem  concerning  street 
railways  and  other  public  service  corporations  which  are  subject 
to  State  laws  exclusively  is  so  similar  in  its  nature  that  it  can 
then  be  treated  very  briefly  without  much  repetition.  The  several 
States  must  be  relied  upon  to  supply  the  remedy  for  strikes  on 
public  service  works  within  their  limits,  while  the  United  States 
government  must  supply  the  remedy  as  to  interstate  commerce, 
but  in  either  case  it  is  the  same  problem  as  to  the  relation  of 
government  to  quasi  public  corporations,  and  it  is  immaterial  for 
our  purposes  whether  we  take  up  some  individual  State  for 
consideration  or  our  Federal  government.  In  view  of  this  fact, 
and  because  they  are  of  greater  importance,  we  will  first  con- 
sider the  question  of  the  Federal  control  of  railroads  as  it  relates 
to  strikes. 

We  already  have  statutes  which  embody  some  of  the  virtues 
and  faults  of  the  Canadian  Industrial  Disputes  Act  for  our 
Federal  laws  since  1898  have  provided  for  conciliation  and  arbi- 
tration in  case  of  labor  disputes  on  railroads.  Whenever  a 
controversy  arises  concerning  conditions  of  employment  which 
threatens  to  interrupt  the  service,  the  chairman  of  the  Interstate 
Commerce  Commission  and  the  Commissioner  of  Labor  must, 
upon  the  request  of  either  party  to  the  controversy,  put  them- 
selves in  communication  with  both  parties  and  endeavor  to  effect 
an  amicable  settlement.  If  these  commissioners  fail  in  their 
endeavors  to  effect  a  settlement  in  this  way,  it  is  their  duty  to 
attempt  to  bring  about  an  arbitration  for  which  the  act  also 
provides,  but  the  weakness  of  the  act  is  apparent  in  the  fact  that 
even  this  work  of  investigation  and  conciliation  cannot  be  under- 
taken on  the  initiative  of  the  government  but  only  on  the  request 
of  one  of  the  parties. 

The  board  of  arbitration  for  which  the  act  provides  in  the 
event  that  mediation  and  conciliation  by  the  commissioners  fails, 

12 


is  but  a  temporary  board  chosen  for  the  purposes  of  the  particu- 
lar controversy  and  not  like  many  State  boards  of  permanent 
standing.  It  consists  of  three  members,  one  chosen  by  the  com- 
pany, one  by  the  employees  and  a  third  chosen  by  the  two  first 
selected.  On  the  failure  of  the  two  arbitrators  first  selected  to 
agree  upon  a  third  arbitrator  within  five  days  after  their  first 
meeting,  he  is  to  be  chosen  by  the  Commissioner  of  Labor  and 
the  Chairman  of  the  Interstate  Commerce  Commission.  The 
arbitrators  have  power  to  issue  subpoenas  for  witnesses,  to  com- 
pel the  production  of  books  and  to  administer  oaths.  If  neces- 
sary, they  may  invoke  the  aid  of  the  United  States  Courts  for 
this  purpose.  The  award  is  to  be  filed  in  the  office  of  the  Clerk 
of  the  Circuit  Court  of  the  United  States  and  judgment  entered 
thereon,  but  exceptions  may  be  filed  against  said  award  and  are 
heard  by  the  United  States  Circuit  Court.  During  the  course 
of  the  arbitration  no  employee  shall  be  discharged  except  for 
inefficiency,  violation  of  law  or  neglect  of  duty,  and  the  employees 
shall  not  unite  in  any  strike.  ....The  award  of  the  arbitrators  shall 
continue  in  force  for  one  year,  but  the  only  protection  to  the 
public  and  the  only  restriction  against  further  strikes  or  boy- 
cotts is  a  provision,  which  forbids  the  employer  to  discharge  an 
employee,  and  an  employee  to  quit  work,  because  of  dissatisfac- 
tion with  the  award,  at  any  time  within  three  months  after  the 
award  except  on  giving  thirty  days'  notice  in  writing  of  such 
intention.  It  is  thus  possible  and  lawful  under  this  act  for  any 
railroad  company  or  employee  to  give  immediate  notice  of  dis- 
satisfaction with  the  award  after  its  rendition  and  to  inaugurate 
a  strike  or  lockout  within  thirty  days.  It  is  also  permissible  for 
either  party  to  declare  a  strike  or  lockout,  as  the  case  might  be, 
at  any  time  after  three  months  without  notice,  as  if  no  arbitra- 
tion had  taken  place.  The  act  would  seem  to  be  even  less  satis- 
factory than  the  Canadian  Industrial  Disputes  Act,  for  it  does  not 
provide  for  any  investigation  and  award  except  by  the  consent  of 
the  parties,  while  the  Canadian  Act  contemplates  a  compulsory 
investigation  and  report  regardless  of  their  consent.  Even  the 
harmless  work  of  conciliation  can  only  be  undertaken  on  the  request 
of  either  party  and  not  on  the  initiative  of  the  government  or  the 
suffering  public.  When  the  consent  of  the  parties  is  actually 
obtained  for  arbitration,  it  accomplishes  but  little  more  than  the 
Canadian  Act,  for  it  has  no  binding  force  beyond  the  provision 
that  forbids  strikes  or  lockouts  within  three  months,  except  on 
thirty  days'  written  notice.  This  affords  but  slight  protection  to 
the  public  and  but  slight  inducement  or  justification  for  parties 
to  enter  into  the  protracted,  harassing  and  inconvenient  hearings 
of  arbitration.  In  the  eleven  years  that  this  law  has  been  on  our 
statute  books,  only  three  arbitrations  have  been  effected  under  it, 
including  that  which  more  recently  terminated  the  strike  on  the 
Georgia  Railroad.    There  have  also  been  a  number  of  successful 

13 


mediations.  Like  the  Canadian  Act  this  Federal  statute  is  open 
to  the  charge  of  inadequacy  and  leaves  unsolved  the  problem  set 
before  us  of  effectually  abolishing  strikes  on  public  utilities.  Let 
us  therefore  proceed. 

The  problem  is  twofold :  ( 1 )  the  negative  consideration 
which  must  effectually  abolish  strikes  on  public  service  corpora- 
tions; (2)  the  affirmative  consideration  which  deals  with  the 
necessity  of  providing  some  protection  to  employees  in  lieu  of  the 
protection  now  afforded  by  the  right  to  strike. 

In  dealing  with  the  first  aspect  of  the  problem,  the  most  log- 
ical piece  of  legislation  is  a  prohibition  against  strikes  on  public 
service  corporations.  This  should  not  be  startling.  The  right  to 
strike  is  not  an  inherent  or  constitutional  right  which  cannot  be 
controlled,  regulated  or  prohibited.  At  common  law  a  strike  was 
declared  unlawful  and  it  has  come  to  be  permitted  not  because  it 
was  the  logical  outgrowth  of  legal  principles  established  in  the 
past  or  because  of  legislation,  but  as  a  measure  of  expediency 
recognized  by  the  courts  for  the  protection  of  the  working  class 
against  the  encroachments  of  the  more  powerful  employer.  It 
is  in  its  nature  the  same  as  a  combination  of  capitalists  to  control 
prices  and  no  one  would  suggest  that  such  a  combination  could 
not  be  regulated  or  forbidden.  A  prohibition  against  strikes  does 
not  in  any  way  deny  the  individual  his  right  to  work  or  not  to 
work,  but  only  the  right  to  do  those  things  which  in  themselves 
are  in  restraint  of  trade  and  involve  a  voluntary  surrender  of  an 
important  part  of  his  individual  freedom  of  action.  As  in 
Germany,  men  who  seek  employment  in  a  public  service  corpor- 
ation should  have  impressed  upon  them  the  obligation  of  not 
quitting  work  simultaneously  by  prearrangement  in  a  way  to 
interrupt  the  service  and  should  be  denied  the  privilege  of  organ- 
ization for  that  purpose.  Such  legislation  should  make  such  com- 
binations both  criminal  and  civil  offenses  and  provide  for  the 
remedy  of  injunction  as  well  as  damages  in  a  civil  suit  and 
penalties  in  a  criminal  prosecution. 

It  is  probable  that  proper  penalties  specified  in  such  a  law 
would  act  as  an  effective  deterrent  against  any  general  violation 
of  it,  but  even  if  an  attempt  were  made  to  organize  a  strike 
contrary  to  the  law  it  could  be  controlled  by  the  injunctive  process 
of  the  courts.  Equity  will  never  grant  an  injunction  ordering 
men  to  remain  at  work,  as  it  is  manifestly  impracticable  to 
enforce  such  a  decree,  but  equity  can  and  will  enjoin  men  from 
organizing  and  instigating  a  strike  and  conducting  the  usual  and 
necessary  preliminaries  to  the  organization  of  a  strike.  Strikes 
are  not  voluntary  or  natural  uprisings  or  coincident  withdrawals 
of  men  from  employment,  but  involve  elaborate  preparations  so 

14 


that  all  men,  willing  and  unwilling,  will  act  in  concert.  As 
Carlyle  said:  "Insurrection  is  difficult,  each  individual  uncertain 
of  his  next  neighbor;  totally  uncertain  of  his  distant  neighbors." 
Moreover,  the  frequent  resorts  to  violence  and  intimidation 
measure  the  difficulties  of  organizing  and  maintaining  a  strike 
and  demonstrate  the  necessity  for  disciplinary  and  coercive 
measures  on  the  part  of  the  union  to  bring  about  concerted  action. 

It  is  these  elaborate  but  necessary  preparations  for  a  strike 
and  the  various  means  of  maintaining  them  that  can  always  be 
enjoined  where  strikes  are  unlawful  and  could  be  enjoined  in  the 
case  of  employees  in  public  service  corporations  if  they  are  for- 
bidden to  strike.  The  injunction,  while  limited  to  this  unlawful 
strike,  would  forbid  the  calling  of  a  meeting  to  consider  the 
strike,  the  actual  voting  on  the  question  of  the  strike,  the 
announcement  of  the  result  of  any  vote,  the  communication  of 
any  orders  and  decrees  of  the  union  concerning  the  strike,  the 
inducement  of  any  men  to  quit  work  and  join  the  strike,  the 
inducement  of  any  men  to  refrain  from  work  for  the  purpose  of 
maintaining  the  strike,  the  collection  of  any  fines  for  refusing  to 
strike,  the  expulsion  of  a  union  member  for  refusing  to  strike, 
and  finally  the  payment  of  any  strike  benefits.  An  injunction 
against  these  acts  would  make  any  man  liable  to  punishment  for 
contempt  of  court,  who,  with  knowledge  of  the  injunction,  com- 
mitted any  of  them.  In  the  face  of  such  a  situation  no  strike 
could  exist;  for  all  coercive  and  persuasive  measures  would  be 
eliminated. 

There  are  also  various  measures  which  suggest  themselves  as 
proper  expedients  in  connection  with  the  enforcement  of  the 
criminal  aspect  of  the  law.  It  would  be  well  to  provide  that  no 
employee  could  quit  the  service  without  filing  a  written  notice  of 
intention  so  to  do  with  some  government  officer  who  would  be 
forbidden  to  receive  or  file  more  than  a  certain  number  of 
notices  each  day.  This  would  provide  for  such  a  gradual  retire- 
ment of  employees  as  would  make  it  practicable  for  the  railroad 
company  to  continue  the  operation  of  its  trains  without  serious 
interruption  and  would  also  provide  a  definite  and  simple  way  to 
enforce  penalties  for  the  violation  of  this  very  simple  and 
definite  rule. 

The  principle  suggested  by  the  Victoria  strike  might  also  be 
applied  in  this  country  by  providing  for  the  forfeiture  of  certain 
rights  and  privileges  among  those  who  violate  the  law.  If  some 
form  of  old  age  or  sickness  insurance  is  ever  established  by  the 
government,  or  the  railroads  and  government  jointly,  as  is  to  be 
hoped,  the  law  could  provide  for  a  loss  of  those  benefits  to  the 
violators  of  a  law  prohibiting  strikes  on  public  service  corpor- 
ations, but  in  the  absence  of  such  an  arrangement  the  law  might 

15 


license  the  employees  of  the  railroads  and  provide  for  certain 
examinations  as  a  condition  of  the  granting  of  such  license.  This 
license  would  be  forfeited  as  to  all  those  who  broke  the  law  pro- 
hibiting strikes,  and  could  be  restored  on  the  payment  of  a  certain 
sum  of  money  which  would  act  as  a  penalty.  In  cases  where  the 
law  is  violated  more  than  once  the  license  could  be  forfeited  in 
the  discretion  of  the  proper  government  official.  The  remedy 
might  be  compared  to  that  already  existing  as  to  masters,  mates 
and  engineers  of  steam  vessels,  all  of  whom  are  licensed  by  the 
Federal  government.  If  any  one  of  those  officers  wrongfully  or 
unreasonably  refuses  to  perform  his  duties  his  license  is  revoked 
and  for  disobedience  or  desertion  he  is  penalized.  There  are  also 
other  licensed  vocations  which  will  suggest  themselves  to  readers. 
The  danger  of  this  system  of  licensing  is  that  which  was  experi- 
enced from  the  Pennsylvania  Law  licensing  employees  for  coal 
mining.  The  license  provision  was  used  to  stem  the  law  of  supply 
and  demand  and  create  such  a  scarcity  of  labor  as  to  artificially 
raise  the  rate  of  wages.  To  avoid  this,  the  commissioner  should 
not  be  allowed  to  refuse  licenses  because  there  are  no  available 
positions,  but  should  license  all  applicants  who  are  qualified. 

These  various  remedies  or  means  of  enforcing  the  law 
against  strikes  on  public  service  corporations  should  be  cumu- 
lative with  the  one  limitation  that  a  man  should  not  be  penalized 
more  than  once  for  the  same  offense. 

Legislation  of  this  kind  would  seem  to  be  the  natural,  direct 
and  desirable  remedy  for  the  evils  of  strikes  on  public  service 
corporations,  but  it  entirely  deprives  the  employees  of  what  is 
regarded  as  their  necessary  and  proper  weapon  of  defense 
against  oppression  and  abuse  on  the  part  of  their  employers.  The 
right  to  strike  and  the  fear  of  its  exercise  has  done  much  to 
remedy  abuses  between  employers  and  employees  and  the  pro- 
posed remedy  forbids  it  among  the  vast  number  of  working 
people  engaged  by  transportation  and  lighting  companies  as  well 
as  many  others.  What  assurance  is  there  that  the  working  people 
in  these  branches  of  business  will  not  be  underpaid  and  mis- 
treated if  such  legislation  is  passed?  Must  we  not  substitute 
some  protection  to  counterbalance  their  loss  of  the  right  to 
strike  ? 

Answering  these  questions  together  it  may  well  be  ques- 
tioned if  any  abuse  of  employees  would  arise  by  denying  the  right 
to  strike  in  one  industry  if  the  right  is  still  exercised  in  all  other 
industries.  There  is  a  decided  and  palpable  competition  among 
different  and  independent  industries  of  the  most  dissimilar  char- 
acter and  for  that  reason  if  no  other  the  conditions  of  employ- 
ment on  railroads  where  the  right  to  strike  would  not  be  allowed 
would,  in  a  measure,  have  to  be  equally  attractive  and  agreeable, 

16 


with  the  improved  conditions  of  employment  in  industries  where 
the  strike  and  the  fear  of  the  strike  forces  the  employer  to  a  more 
liberal  recognition  of  his  employees'  interests.  Neither  would 
public  opinion  or  the  established  ideals  and  practices  of  our  day 
tolerate  any  retrogression  to  the  oppression  and  abuse  of  labor. 
It  is  a  question  whether  the  dire  results  that  some  people  would 
expect  from  the  abolition  of  strikes  on  public  service  corpora- 
tions are  not  grossly  overestimated,  but  it  cannot  be  doubted  that 
it  would  furnish  an  opportunity  for  temporary  oppression. 

It  is  certain,  however,  that  the  thoughtful  public  would  not 
be  willing  to  prohibit  strikes  on  public  service  corporations  with- 
out substituting  some  measure  of  defense  to  give  the  employees 
equal  assurance  against  unjust  treatment,  and  the  character  of 
this  substitute  is  the  feature  which  stirs  the  opposition  of  many 
people.  Such  a  substitute  must  of  course  provide  for  the  inter- 
position of  some  third  party  when  employers  and  employees  fail 
to  agree  and  if  it  is  to  be  a  measure  of  any  real  efficacy  it  must 
be  rcognized  and  enforceable  at  law.  This  spells  legislation  fix- 
ing the  terms  of  employment  or  some  measure  similar  to  com- 
pulsory arbitration.  The  objections  to  both  of  these  methods  are 
to  most  people  insurmountable  and  the  prejudice  against  them  is 
so  strong  that  they  are  even  unwilling  to  give  them  fair  consid- 
eration. They  think  the  remedy  a  step  in  socialism  and  govern- 
mental regulation  of  business  far  in  advance  of  anything  that  this 
country  has  yet  entertained. 

Before  condemning  too  hastily  any  regulation  by  a  govern- 
mental agency  of  the  relations  of  employer  and  employee  in  pub- 
lic service  corporations  it  is  well  to  understand  to  what  extent  we 
have  already  acquiesced  in  government  regulation  of  public 
service  corporations  and  more  particularly  interstate  railroads, 
which  we  are  considering  at  present.  Even  many  details  of  the 
relation  of  employer  and  employee  are  directly  fixed  by  statute 
to-day.  Laws  exist  very  generally  in  the  different  States  inspect- 
ing factories,  forbidding  the  employment  of  children  until  they 
reach  a  certain  age;  restricting  the  hours  of  employment  of  all 
persons  in  mines ;  providing  the  manner  and  frequency  of  pay- 
ment of  wages.  In  connection  with  railroads  we  find  laws  con- 
trolling mechanical  devices  used,  so  as  to  protect  employees  from 
accidents,  and  laws  absolutely  forbidding  the  employment  of 
adult  men  for  more  than  a  certain  number  of  hours  a  day.  The 
Interstate  Commerce  Commission  also  has  power  to  review  and 
correct  unjust  and  unreasonable  rates  and  to  compel  adequate 
service. 

So  the  idea  of  regulating  certain  details  of  the  relation  of 
employer  and  employee  in  public  service  corporations  by  some 
governmental  agency  and  of  supervising  such  corporations  gen- 

17 


erally  is  not  entirely  new  to  the  statute  books  of  our  State  and 
Federal  government,  although  it  has  not  been  attempted  in  this 
country  as  far  as  I  know  to  fix  a  rate  of  wages  in  any  private 
corporation  by  statute  or  any  other  governmental  agency.  The 
commission  appointed  by  President  Cleveland  in  1894  under  the 
United  States  Statutes  to  investigate  the  great  railroad  strikes, 
was  so  impressed  with  the  crisis  through  which  the  country  had 
just  passed  that  it  dared  to  make  such  a  recommendation  in  no 
uncertain  terms.  The  Hon.  Carroll  D.  Wright  was  one  of  the 
three  members  of  this  commission  by  virtue  of  his  position  as 
commissioner  of  labor,  and  a  very  thorough  investigation  of  the 
trouble  was  made  through  the  examination  under  oath  of  people 
representing  the  various  interests  involved.  Included  in  the  final 
report  of  the  commission  was  an  appendix  containing  a  summary 
of  the  various  remedies  that  had  been  suggested  to  the  commis- 
sion, and  they  covered  a  very  wide  field.  The  commission  made 
many  recommendations  of  a  minor  sort  which  were  subsequently 
embodied  in  our  statutory  law,  but  most  significant  of  all  was  its 
recommendation  concerning  arbitration.  In  reviewing  the  short- 
comings of  conciliation  through  a  commission  that  merely  investi- 
gates and  urging  the  necessity  of  more  effective  measures,  the 
commission  said : 

"Public  opinion  enlightened  by  the  hearings 
before  such  a  commission  will  do  much  toward 
settling  many  difficulties  without  strikes  and  in  case 
of  strikes  will  intelligently  sustain  the  side  of  right 
and  justice  and  often  compel  reasonable  adjust- 
ments. Experience,  however,  has  taught  that  public 
opinion  is  not  alone  powerful  enough  to  control  rail- 
roads. Hence  power  to  review  and  enforce  the  just 
and  lawful  decisions  of  the  commission  against  rail- 
roads ought  to  be  vested  in  the  United  States 
Courts.  There  can  be  no  valid  objection  to  this 
when  we  bear  in  mind  that  we  are  now  dealing 
simply  with  quasi  public  corporations  and  not  with 
either  individuals  or  private  corporations.  What  is 
safe  and  proper  as  to  the  former  might  be  unsafe 
and  unjust  as  to  the  latter.  That  which  is  done 
under  the  act  to  regulate  commerce  as  to  rates  can 
safely  and  ought  properly  to  be  done  as  to  railroad 
wages,  etc.,  by  a  commission  and  the  courts." 

This  recommendation  was  never  adopted  by  Congress  and 
seems  to  have  entirely  passed  out  of  the  public  mind  and  public 
discussion.  Yet  in  view  of  the  steps  that  have  been  taken  to-day, 
in  the  form  of  governmental  regulation  of  public  service  corpor- 
ations by  commission,  it  is  probably  true  that  if  this  country  had 

18 


just  experienced  as  dangerous  and  disastrous  a  labor  crisis  as  that 
of  1894  and  such  a  remedy  were  suggested  it  would  be  adopted. 
Such  a  power  is  absolutely  necessary  to  add  symmetry  to  the  leg- 
islative scheme  we  have  already  adopted  concerning  the  regula- 
tion of  public  service  corporations  and  its  omission  is  unaccount- 
able. Possibly  it  was  the  fear  of  arousing  still  further  opposition 
to  their  proposed  bill  that  made  the  advocates  of  a  public  service 
commission  refrain  from  such  a  natural  recommendation. 

The  plan  which  is  here  advanced  differs  from  that  recom- 
mended by  the  United  States  Strike  Commission  of  1894  in  that 
it  prohibits  strikes  and  provides  that  the  Interstate  Commerce 
Commission  may  hear  and  determine  grievances  of  employees 
from  time  to  time  in  the  same  way  that  it  hears  and  determines 
grievances  of  shippers  or  passengers  for  the  correction  of  unjust 
and  unreasonable  rates.  It  proposes  to  give  employees  who  sell 
labor  to  railroads  the  same  opportunity  for  presenting  complaints 
as  those  who  purchase  transportation  for  themselves  or  property. 
The  strike  commission,  on  the  other  hand,  did  not  recommend 
that  strikes  be  forbidden  by  law  and  never  intended  to  have  the 
commission  or  courts  interfere  to  enforce  compulsory  arbitration 
except  in  extreme  cases.    To  quote  its  own  words : 

"A  tribunal,  however,  should  not  intervene  in 
mere  quarrels  between  employer  and  employed 
unless  the  public  peace  or  convenience  is  involved, 
but  when  it  is  a  clear  case  of  public  obstruction 
whether  caused  by  individuals  or  a  corporation." 

Thus  under  the  plan  recommended  by  the  strike  commission 
a  strike  would  be  organized  to  correct  a  grievance  and  be  about 
to  take  place  in  a  way  that  would  jeopardize  the  public  safety  or 
convenience  before  the  commission  could  act.  It  is  submitted 
that  this  plan  is  objectionable,  as  it  waits  until  the  storm  has 
gathered  before  it  acts  and  then  may  find  that  forces  have  been 
set  in  motion  which  it  is  difficult  to  control.  It  is  better  far,  if 
government  regulation  is  to  continue,  to  provide  for  the  correc- 
tion of  each  substantial  grievance  as  it  may  appear  rather  than 
to  allow  such  grievances  to  accumulate  and  gather  strength  until 
a  strike  is  threatened. 

If  the  Strike  Commission  had  foreseen  the  extent  to  which 
we  were  to  adopt  paternal  legislation  and  government  by  com- 
mission it  would  probably  have  made  a  different  recommendation, 
for  the  powers  given  the  interstate  commerce  commission  and 
state  public  service  commissions  to-day  are  of  such  character  as 
to  make  the  failure  to  give  them  power  to  determine  labor  contro- 
versies a  strange  and  improper  omission  and  one  that  may  involve 
the  commission  and  the  public  in  strange  complications. 

19 


If  the  citizens  of  a  town  can  complain  to  a  governmental 
commission  that  freight  or  passenger  rates  are  excessive,  employ- 
ers and  employees  should  be  able  to  approach  the  same  commis- 
sion in  a  petition  to  determine  wages.  Rates  and  wages  are 
inseparably  connected  and  interdependent.  You  cannot  have  high 
wages  without  charging  high  rates,  and  low  rates  mean  low 
wages,  provided  justice  is  to  be  meted  out  to  the  investor  in  the 
form  of  a  fair  return  on  the  investment.  In  justice  a  ruling 
which  reduces  rates  might  include  in  some  instances  a  ruling 
reducing  wages. 

Looking  at  the  interest  of  the  public  we  find  the  commis- 
sion's power  may  include  the  issuing  of  orders  directing  the 
manner  and  frequency  with  which  trains  are  run  to  certain  cities, 
and  the  fares  to  be  charged  for  the  service,  yet  it  has  no  power 
to  prevent  the  absolute  discontinuance  of  the  service  by  a  strike. 
This  is  illogical  and  unsatisfactory,  for  it  tells  the  employer  that 
he  must  run  so  many  trains  a  day  at  prescribed  charges,  and  does 
not  forbid  the  employee  from  taking  such  action  as  will  prevent 
the  operation  of  all  trains.  The  public  should  have  as  much  right 
to  demand  reasonable  conduct  on  the  part  of  the  employee  as  on 
the  part  of  the  employer.  Furthermore  it  may  be  the  commis- 
sion's act  itself  which  provokes  the  strike. 

If  the  commission  finds  on  a  complaint  to  it  that  rates  are 
too  high,  it  may  also  find  that  the  cause  for  the  excessive  charge 
is  excessive  wages  that  are  being  paid.  It  will  then  make  its  rul- 
ing reducing  rates  but  it  will  have  no  power  to  reduce  the  exces- 
sive wages.  The  employer  will  accordingly  be  obliged  to  reduce 
wages,  which  will  probably  result  in  a  strike  interrupting  the 
service.  Thus  a  commission  which  has  power  to  order  the  opera- 
tion of  a  certain  number  of  trains  a  day  will  by  its  own  order, 
and  in  the  performance  of  its  mandatory  duty,  create  a  situation 
so  that  no  trains  are  run.  It  is  unjust  and  unreasonable  to 
employer,  employee  and  the  public  that  such  a  condition  should 
exist  and  it  would  seem  that  the  logical  remedy  were  to  extend 
the  powers  of  the  interstate  commerce  commission  so  that  it 
could  also  determine  whether  wages  or  conditions  of  employ- 
ment are  unreasonable  or  unjust.  This  plan,  together  with  the 
suggested  legislation  abolishing  strikes,  would  seem  to  furnish  a 
promising  solution  for  such  woeful  experiences  as  we  have  wit- 
nessed in  Philadelphia  and  Chicago  and  under  the  orders  of  Debs 
and  Arthur.  At  the  same  time  the  plan  ought  not  to  meet  with 
opposition.  The  railroads  are  already  enduring  the  annoyances 
and  necessary  evils  that  emanate  from  the  interference  of  a  gov- 
ernmental commission  and  being  subject  to  governmental  control 
as  to  the  rates  they  may  charge,  should  be  glad  to  be  relieved 
from  that  terrible  phantom  of  a  threatened  strike,  by  giving  the 
same  commission  the  power  to  settle  controversies  with  their 

20 


employees  when  they  themselves  have  failed.  Their  net  profits 
and  their  opportunities  for  large  returns  would  be  no  more 
jeopardized  or  restricted  by  such  an  extension  of  the  commis- 
sion's  power  than  they  are  under  the  present  regime.  If  the 
Interstate  Commerce  Commission  is  ever  divested  of  its  power  to 
hear  and  determine  the  questions  of  reasonable  and  just  rates, 
there  will  then  be  a  far  stronger  argument  against  the  proposed 
remedy  as  to  strikes,  but  as  long  as  the  commission's  present 
jurisdiction  is  not  reduced  there  can  be  no  strong,  intelligent 
opposition  on  the  part  of  the  railroads  against  the  plan. 

The  labor  unions,  on  the  other  hand,  cannot  raise  any  cry 
based  on  a  fear  of  oppression  and  abuse,  for  they  are  not 
deprived  of  the  right  to  strike  without  provision  for  their  proper 
protection.  The  determination  of  their  rights  by  an  impartial 
governmental  tribunal  cannot  gracefully  be  criticised  by  them 
until  it  has  shown  itself  to  be  partial,  unjust  and  untrustworthy. 

The  same  plan  of  settling  labor  controversies  by  a  commis- 
sion should  also  be  attempted  in  connection  with  public  utilities 
over  which  the  Federal  Government  has  no  dominion,  and  which 
are  subject  only  to  regulations  enacted  by  the  state  authorities. 
Already  we  have  Public  Service  Commissions  in  a  number  of 
states  in  which  powers  to  control  the  relation  of  employer  and 
employee  could  be  reposed  as  in  the  Interstate  Commerce  Com- 
mission. Like  the  Interstate  Commerce  Commission  these  State 
Commissions  also  have  in  most  instances  the  power  to  regulate 
rates  without  the  power  to  regulate  wages,  and  should  have  this 
additional  power  as  a  necessary  part  of  their  duties  to  protect  the 
public  against  interruption  of  service  and  unreasonable  exactions 
in  connection  with  the  service. 

The  rapid  development  in  the  creation  and  powers  of  com- 
missions, both  State  and  Federal,  to  protect  the  public  interests 
in  public  utilities,  seems  to  have  centered  itself  upon  evils  like 
watered  securities  and  excessive  rates,  which  in  most  cases  are 
imaginary,  and  to  have  omitted  an  evil  of  unquestioned  reality. 
There  has  been  little  ground  to  complain  of  unreasonable  rates 
charged  by  traction  companies,  except  discriminatory  ones  on 
railroads,  and  little  ground  to  complain  that  investments  in  the 
securities  of  public  utilities  are  insecure,  but  there  has  been  fre- 
quent occasion  to  complain  that  the  service  has  been  interrupted 
on  account  of  labor  controversies. 

Such  measures  as  have  been  suggested  would  hardly  meet 
with  approval  from  the  majority  of  railroad  officials.  But  an 
expression  of  views  which  has  been  elicited  by  forwarding  an 
advanced  draft  of  this  monograph  to  a  small  group  of  railroad 
officials  demonstrates  that  they  are  not  uniformly  opposed  to  the 

21 


idea  of  compulsory  arbitration  of  labor  disputes  on  public  util- 
ities. By  some  it  is  positively  approved.  Opposition  to  the  idea 
follows  lines  of  thought  already  so  familiar  to  the  public  that  they 
offer  little  need  for  further  discussion.  The  foremost  among  all 
these  ideas  is  the  desire  "to  be  let  alone."  With  a  great  deal  of 
justice  railroads  and  other  large  corporations  have  come  to  fear 
that  any  activity  on  the  part  of  legislatures  may  lead  to  radical 
ill-considered  measures  prompted  by  demagogical  motives.  There 
also  still  exists  the  feeling  that  capital  invested  in  railroads  is 
private  property,  over  which  the  owners  may  rightly  exercise 
absolute  control  without  governmental  interference.  The  doc- 
trine of  laissez  faire  is  popular  and  words  like  "confiscation"  and 
"infringement  of  rights"  are  frequently  on  their  tongues.  The 
public,  however,  will  give  little  countenance  to  such  an  argu- 
ment and  is  not  likely  to  abandon  government  by  commission 
because  of  some  abstract  theory  of  justice  like  this.  A  more 
serious  argument  than  all  these  is  the  difficulty  of  securing  and 
maintaining  a  capable  commission  of  clear  visioned,  independent, 
experienced  men  who  can  judge  impartially  and  who  will  have 
the  courage  not  to  compromise  unfairly.  The  difficulty  of  secur- 
ing such  men  and  the  difficulty  and  expense  of  establishing 
machinery  which  will  promptly  execute  the  enormous  burden  of 
work  that  may  be  thrown  upon  it  is  not  to  be  lightly  overlooked. 
The  history  of  most  of  the  commissions  with  which  this  country 
has  had  to  deal  offers  little  encouragement  along  this  line,  but  it  is 
unlikely  that  the  people  of  this  country  will  in  the  future  leave  it 
to  the  sole  voice  of  railroad  officials  to  determine  whether  or  not 
they  are  properly  acquitting  their  duties  toward  the  public.  The 
alternative,  therefore,  seems  to  be  some  government  by  commis- 
sion and  with  this  institution  recognized  the  objection  to  the 
settlement  of  labor  disputes  by  it  decreases.  Neither  is  it  unrea- 
sonable to  hope,  that  with  the  increased  responsibilities  of  a 
commission,  and  the  increased  importance  which  the  public  will 
attach  to  this  institution,  that  the  character  of  men  appointed 
and  the  administration  of  its  duties  will  improve. 

SUPPLEMENTARY. 

Since  the  preparation  of  this  monograph,  an  article  has  been 
published  in  McClurc's  Magazine,  entitled.  "The  Best  Way  to 
Prevent  Industrial  Warfare,"  and  written  by  Charles  W.  Eliot, 
President  Emeritus  of  Harvard  University.  This  article  deals 
exclusively  with  the  Canadian  Industrial  Disputes  Investigation 
Act  and  is  an  almost  unqualified  endorsement  of  that  act. 
Among  other  things,  President  Eliot  points  out  the  very  success- 
ful way  in  which  this  act  has  settled  threatened  strikes  on  public 

22 


utilities.  The  modicum  of  success  which  has  followed  the  inter- 
vention of  this  remedy  of  investigation  and  conciliation  in  Canada 
is  certainly  a  very  strong  argument  in  favor  of  it,  but  it  is  open 
to  question  whether  a  similar  remedy  would  work  as  successfully 
among  the  labor  unions  of  this  country.  The  absolute  refusal 
of  the  switchmen  in  the  northwest  to  avail  themselves  of  the 
employers'  offer  to  arbitrate  their  claims  for  advanced  wages 
under  our  Federal  Statutes  and  the  willingness  of  the  American 
Federation  of  Labor  to  support  them  in  this  position  is  some 
indication  of  the  fact  that  they  are  regardless  of  public  sentiment 
and  unwilling  to  abide  by  conciliatory  methods.  No  one  can  be 
ignorant  of  the  fact  that  the  general  public  believes  in  arbitration 
when  it  involves  only  the  question  of  wages  and  hours,  and  that 
a  refusal  to  accept  an  offer  of  arbitration,  when  there  are  statutes 
which  provide  for  the  proper  machinery  to  carry  out  the  arbitra- 
tion, alienates  public  sentiment.  This  Federal  statute,  ordinarily 
known  as  the  Erdman  Act,  which  provides  for  arbitration  when 
the  parties  are  willing  to  submit  to  it,  has  been  in  operation  since 
1898,  and  the  Commissioner  of  Labor  writes  me  that  in  the  num- 
ber of  cases  that  has  been  brought  to  his  attention,  there  have 
been  but  three  instances  of  arbitration.  This  report  is  simply 
offered  as  further  evidence  of  the  unwillingness  of  labor  unions 
in  the  United  States  to  seek  arbitration  even  though  it  may 
concern  the  relations  of  employees  to  an  important  public  utility. 
But  a  still  more  remarkable  piece  of  evidence  of  the  difference 
between  one  of  the  Canadian  unions  and  the  unions  of  the 
United  States  may  be  found  in  a  report  of  a  recent  resolution 
passed  by  that  Canadian  union  when  it  refused  the  invitation  of 
the  American  Federation  of  Labor  to  become  affiliated  with  the 
unions  of  the  United  States.  The  ground  given  by  this  Canadian 
union  for  the  refusal  was  that  it  would  be  necessary  to  adopt  the 
methods  of  American  Trade  Unions : 

"Said  methods  have  consequences  which  are  abhorrent  to  the 
law-abiding  people  in  Canada,  involving  hunger,  misery,  riot, 
bloodshed  and  murder." 

These  facts  properly  raise  the  question  as  to  whether  the 
partially  successful  operation  in  Canada  of  the  Canadian  Indus- 
trial Disputes  and  Investigation  Act  is  satisfactory  evidence  that 
such  an  act  would  be  a  sufficient  restraint  upon  the  unions  of  the 
United  States. 


23 


COPIES    OF    LETTERS    RECEIVED    FROM    LEADING 

RAILROAD  OFFICIALS. 


July  30,  1909. 


Dear    Sir 


I  am  in  receipt  of  your  favor  of  the  28th  inst.,  enclosing 
copy  of  monograph  relating  to  strikes  on  public  utilities,  which  I 
have  read  with  great  interest. 

I  believe  in  cases  of  trouble  or  disagreement  between 
employers  and  employees  on  railroads,  both  steam  and  electric, 
urban  or  interurban,  as  well  as  public  utilities  producing  necessi- 
ties, such  as  gas,  electric  light,  water,  etc.,  that  arbitration  should 
be  made  compulsory,  to  the  end  that,  so  far  as  legislation  can 
prevent  it,  there  should  be  no  stoppage  or  interference  with  those 
utilities  on  which  the  business  and  commerce  of  the  country,  and 
in  some  cases,  not  only  the  health  and  comfort,  but  the  very  life 
of  the  communities,  depend. 

The  Erdman  act  provides  a  method  of  arbitration  in  the  case 
of  railroad  strikes,  but  as  it  does  not  make  arbitration  compul- 
sory, or  forbid  suspension  of  work  pending  arbitration ;  its  influ- 
ence, while  good,  is  simply  a  moral  one  and  does  not,  in  my 
opinion,  go  far  enough. 

It  should  be  impossible  to  absolutely  tie  up  a  great  railroad, 
cutting  off  all  means  of  communication  between  different  sections 
of  the  country ;  and  the  only  way  that  this  can  be  brought  about, 
as  I  see  it,  is  by  legislation  that  will  compel  both  parties  to  submit 
controversies  to  arbitration. 

I  prefer  not  to  be  quoted  in  what  I  have  said  herein,  as  I 
am  simply  writing  my  personal  opinion  for  your  information. 

Yours  very  truly, 


24 


July  31,  1909. 

Dear    Sir  : 

I  duly  received  your  letter  of  the  28th  instant,  enclosing  copy 
of  a  monograph  which  you  have  prepared  relating  to  strikes  of 
employees  engaged  in  the  service  of  public  utilities  of  any  kind 
and  containing  your  suggestions  as  to  the  manner  of  handling  all 
controversies  between  companies  operating  or  providing  public 
utilities  of  any  kind  and  their  employees  on  labor  questions  and 
conditions  governing  their  employment.  I  have  read  same  care- 
fully and  return  it  to  you  herewith.  I  do  not  believe  I  care  to 
make  any  criticism  or  suggest  any  changes  in  same. 

Frankly  speaking,  I  do  not  agree  with  your  views  or  sugges- 
tions as  to  handling  these  very  important  matters.  As  respects 
railroad  companies,  I  think  the  United  States  Government,  as 
also  those  of  the  different  states,  have  gone  altogether  too  far 
now  in  undertaking  to  regulate  and  control  the  details  of  the 
management  and  operation  of  these  properties.  It  is  entirely 
contrary  to  the  spirit  of  our  Government  and  institutions,  and,  to 
my  mind,  it  has  not  been  justified  nor  is  it  necessary  by  reason 
of  conditions  or  situations  that  have  governed  in  the  past,  nor  can 
I  see  that  the  future  handling  of  these  properties  or  of  their 
relations  to  the  public  at  large,  should  require  any  such  inter- 
ference as  has  already  been  undertaken. 

I  cannot  see  anywhere,  either  in  the  machinery  of  our  gen- 
eral government  or  in  that  of  the  different  states,  that  the  affairs 
committed  to  public  officers  or  politicians  are  any  better  or  more 
honestly  or  ably  administered  than  the  affairs  of  the  railroad 
companies  have  been  by  those  in  charge  of  the  management  of 
them. 

The  putting  into  the  hands  of  the  Interstate  Commerce  Com- 
mission, or  any  other  public  body,  of  the  handling  of  questions 
pertaining  to  wages  and  conditions  of  service  on  railroads  is 
bound  sooner  or  later  to  put  all  these  important  matters  into  poli- 
tics. The  present  Interstate  Commerce  Commission  is  not  a  body 
that,  so  far  as  I  can  see,  has  been  or  is  governed  by  political  con- 
siderations, but  I  can  readily  see  how  it  might  be  made  a  political 
machine  of  tremendous  power  and  importance,  and  the  danger  is 
that  appointments  may  be  made  as  vacancies  may  occur  in  the 
future,  which  will  make  the  putting  of  these  powers  as  proposed 
in  the  hands  of  that  body  very  much  more  objectionable  than  it 
ever  has  been  heretofore. 

25 


As  I  view  it,  the  people  of  this  country  have  suffered  very 
little  in  the  past  from  strikes  which  occurred  on  railroads,  and  to 
my  mind  they  had  better  in  the  future  take  their  chances  as  they 
have  done  heretofore  of  loss  and  inconvenience  from  such  strikes 
as  may  occur  rather  than  take  action  which  amounts  to  abandon- 
ing the  principles  the  maintenance  of  which  I  think  is  of  the 
highest  importance. 

Yours  truly, 


August  3,  1909. 

Dear    Sir  : 

I  feel  indebted  to  you  for  the  chance  to  read  your  paper  sent 
me  on  July  28th.  I  took  it  to  the  country  with  me  and  read  it 
very  carefully  on  Sunday.  I  fully  agree  with  your  conclusions, 
I  also  agree  with  all  your  statements  except  one,  and  that  one  is 
the  intimation  in  one  paragraph  that  railroad  employees  may  not 
need  a  protection  from  their  employers  similar  to  what  they  try 
to  get  by  means  of  the  Trade  Union.  There  is  a  strong  tendency 
to  tyranny  wherever  a  man's  decision  is  final  or  nearly  final  and 
among  ten  thousand  railroad  officers  there  are  plenty  of  tyrants. 
I  see  no  remedy  so  appropriate  and  so  defensible  as  the  one  you 
propose  for  the  interstate  railroads,  although  the  idea  is  not 
entirely  new,  for  I  have  often  engaged  in  discussing  the  possibil- 
ity of  it  with  railroad  officers,  nevertheless  your  presentation  of 
it  is,  so  far  as  I  know,  entirely  new. 

I  lunched  yesterday  with  Mr.  ,  President  of  the 

-,  and  the   former  President  of  the  ,  a  great 


man  and  a  good  man.  He  was  strongly  in  favor  of  it,  at  the 
same  time  feeling  assured,  as  he  expressed  it,  that  if  the  proposi- 
tion were  put  to  vote  among  active  railroad  presidents  and  gen- 
eral managers  it  would  be  overwhelmingly  defeated.  I  think  it 
is  probably  true  that  government  regulation  is  still  nauseous  to 
most  railroad  officers,  nevertheless  we  have  uniformly  recom- 
mended government  regulation,  this  is  quite  distinct,  however, 
from  government  control.  You  point  out  clearly  that,  if  that 
regulation  is  applicable  to  rates  and  to  service  rendered,  it  is  not 
only  logical  but  perhaps  necessary  to  protect  the  railroads  from 
strikes  in  the  carrying  out  of  the  Commissioner's  orders  and  in 
obedience  to  the  law. 

26 


Kindly  let  me  know  as  soon  as  your  monograph  is  printed  by 
the  Association  and  also  let  me  have  three  or  four  copies.  I  shall 
expect  to  pay  considerable  attention  to  it. 

Yours  very  truly, 


July  30,  1909. 
My  Dear  Sir: 

I  have  your  letter  of  the  28th  inst. 

The  ground  proposed  to  be  covered  by  you  is,  of  course,  in 
no  way  so  fully  covered  as  by  the  advisory  power  granted  to  the 
Interstate  Commerce  Commission  by  an  Act  of  Congress, 
approved  June  1,  1898,  entitled  "An  Act  Concerning  Carriers 
Engaged  in  Interstate  Commerce  and  Their  Employees."  Sev- 
eral arbitrations,  including  a  recent  one  in  Georgia,  have  taken 
place  under  this  Act,  and  I  think  your  discussion  is  incomplete  in 
omitting  reference  to  it. 

Speaking  as  to  the  general  principle  involved,  I  regard  the 
attitude  of  the  government  toward  the  corporations  in  this  coun- 
try as  quite  indefensible,  in  that  they  neither  own  the  public 
utilities,  as  in  Germany  and  Austria,  nor  do  they  guarantee  the 
dividends,  as  in  France,  but  disclaiming  all  responsibility,  they 
have  stepped  in  to  exercise  authority  over  almost  every  admin- 
istrative act.  I  think  this  is  a  condition  that  is  neither  logically 
nor  morally  defensible,  and  cannot  be  expected  to  long  endure. 

A  different  aspect  will  be  given  to  the  matter  if  there  is  any 
prospect  that  the  wisdom  of  Congress  and  State  Legislatures  will 
lead  to  the  simple  exercise  of  their  police  powers,  and  to  the  with- 
drawal of  all  the  regulating  power  now  given  to  Public  Service 
Commissions,  leaving  these  Commissions  only  powers  of  exam- 
ination, publishing  statistical  data  from  the  information  obtained, 
and  advising  both  the  corporations  and  the  Legislature  as  to  sug- 
gested changes  or  reforms  in  the  law. 

Yours  very  truly. 


August  3,  1909. 

My  Dear  Sir: 

I  have  read  with  much  interest  the  paper  which  accompanied 
your  letter  of  the  28th  instant.  It  is  evident  that  you  have  taken 
pains  to  treat  the  subject  impartially.  In  my  opinion,  however, 
there  are  fundamental  objections  which  make  the  plan  imprac- 
ticable. 

Your  citations  of  Legislative  measures  affecting  the  relations 
between  railroads  and  employees  abroad  apply  generally  to  Gov- 
ernment Ownership  roads.  American  conditions  are  essentially 
different.  Your  plan  might  be  practical  under  Government  Own- 
ership, a  condition  which  we  devoutly  hope  will  never  obtain 
here.  I  do  not  think  that  the  United  States  can  with  profit 
emulate  the  "enlightened  legislation"  to  which  you  refer. 

Any  plan  which  would  take  out  of  the  hands  of  the  manage- 
ment, and  the  men  as  well,  the  right  mutually  to  fix  rates  of  pay 
and  working  conditions  is  a  step  too  far  toward  government 
ownership  and  socialism. 

The  Interstate  Commerce  Commission  now  has  much  more 
under  its  jurisdiction  than  it  can  control  fairly,  expeditiously  and 
effectively.  The  problem  of  reasonable  rates  is  far  from  solution. 
To  add  to  the  duties  of  the  Commission  the  regulation  of  wages 
and  conditions  of  employment  would  swamp  an  already  over- 
loaded body  with  a  volume  of  complex  and  unfamiliar  problems 
and  necessitate  doubling  the  commission,  its  office  and  field 
forces.  It  would  also  tremendously  increase  the  power  of  an 
already  powerful  governmental  bureau  and  tend  toward  danger- 
ous centralization. 

The  few  details  of  operation  now  regulated  by  the  Commis- 
sion apply  only  to  the  safety  of  employees  and  passengers.  I 
know  of  no  criterion  for  such  a  marked  extension  of  power  and 
such  a  radical  curtailment  of  prerogative  on  the  part  of  both 
manager  and  employee. 

Because  the  Interstate  Commerce  Commission  now  controls 
rates  does  not  appeal  to  me  as  a  logical  reason  why  they  should 
also  control  wages  and  working  conditions.  By  the  same  reason- 
ing it  is  easy  to  justify  Government  Ownership.  The  recogni- 
tion of  the  right  to  regulate  rates  on  interstate  freight  business 
does  not  justify  the  abandonment  of  managerial  rights  to  the 
commission  any  more  than  excessive  taxation  would  be  justified 
on  the  ground  that  reasonable  taxation  is  recognized  as  proper. 

28 


Your  contention  (page  20)  that  high  rates  must  follow  high 
wages  and  low  rates  result  from  low  wages  is  not  borne  out  by 
the  experience  of  the  past  two  decades.  You  will  find  by  study- 
ing the  statistics  of  the  Interstate  Commerce  Commission,  that 
the  tendency  of  rates  has  been  downward  and  the  trend  of  wages 
decidedly  upward.  I  can  hardly  conceive  of  any  governmental 
commission  promulgating  an  order  which  would  simultaneously 
reduce  rates  and  wages  (as  you  suggest,  page  20). 

On  page  6  you  mention  the  embarrassment  to  which  the 
employer  is  now  put  by  lack  of  complete  control  over  his  men 
(on  account  of  the  possibility  of  a  strike  following  the  enforce- 
ment of  a  reasonable  rule  or  rate  of  wages).  If  he  is  now 
hampered  while  still  retaining  his  managerial  rights,  would  he 
not  lose  his  prerogatives  and  prestige  entirely  if  the  control  he 
now  exercises  is  usurped  by  the  government? 

In  my  personal  opinion  legislative  enactments  and  govern- 
mental commissions  will  not  effectually  cure  the  weaknesses  in  the 
present  system  to  which  you  draw  attention.  I  believe  that  public 
opinion  and  economic  laws  will  continue  to  exercise  the  needed 
safety  valves.  And  my  observation  leads  me  toward  the  belief 
that  the  railroads  have  been  overlegislated.  The  tendency  is  to 
reduce  rather  than  increase  legislative  restriction. 

I  am  glad  to  have  the  opportunity  to  read  and  criticise  your 
paper  and  would  like  to  have  a  copy  when  it  is  printed.  I  am 
writing  this  letter  on  plain  paper,  as  the  views  expressed  are  per- 
sonal and  are  not  to  be  taken  as  those  of  my  employers. 

Very  truly, 


June  4,  1909. 

Dsar    Sir  : 

Your  favor  of  May  19th  to  Mr.  ,  with  reference 

to  your  pamphlet  on  "Limitations  of  the  Right  to  Strike"  has 
been  referred  to  me  with  request  that  I  communicate  with  you. 

We  are,  of  course,  in  sympathy  with  the  movement  of  the 
American  Anti-Boycott  Association  and  appreciate  the  copy  of 
your  article  on  limitations  of  the  right  to  strike  which  you 
enclosed. 


In  respect  to  railway  and  other  public  service  corporations, 
as  has  been  frequently  pointed  out,  the  interests  of  the  public  are 
necessarily  to  be  considered  in  connection  with  the  right  of 
employees  to  strike.  We  hardly  think  additional  legislation  is 
necessary  except  possibly  some  which  might  adequately  punish 
strikers  when  they  transcend  their  rights.  Railway  companies, 
however,  under  the  present  state  of  decisions  are  afforded  pretty 
ample  protection  by  the  injunctive  process.  If  any  additional  leg- 
islation were  suggested  it  would  probably  be  turned  against  the 
railway  companies  because  of  the  influence  exercised  by  labor 
unions  on  legislative  bodies.  Railroad  companies  would  not  care 
to  have  a  restriction  placed  upon  their  right  to  declare  a  lockout 
in  a  proper  case ;  yet  if  legislation  were  attempted  to  restrict  the 
right  to  strike  there  is  danger  that  bills  introduced  for  such  pur- 
pose would  be  perverted  so  as  to  include  and  restrict  the  right  of 
railway  companies  to  lockout. 

On  the  whole  we  are  inclined  to  think  we  can  safely  rest  on 
the  present  state  of  the  law. 

Yours  very  truly, 


June  18,  1909. 

My  Dear  Sir: 

In  acknowledging  receipt  of  your  favor  of  May  19  I  would 
say  that  reply  has  been  delayed  on  account  of  rather  extended 
absences  from  my  office  and  pressure  of  other  business  when 
here. 

The  work  which  you  are  conducting  has  my  entire  sympathy 
and  approval,  and  I  have  read  with  much  interest  the  pamphlet 
which  you  sent  me,  "Limitations  of  the  Right  to  Strike;"  your 
argument  in  the  matter  strikes  me  as  essential  and  unassailable. 

As  to  your  proposed  pamphlet  dealing  with  the  subject  of 
strikes  on  public  service  corporations,  I  am  quite  strongly  of  the 
opinion  that  it  is  practically  impossible  to  procure  at  this  time 
the  enactment  of  any  statutes  likely  to  strengthen  the  position  of 
railroads  in  connection  with  the  strike  question.  Any  bills  that 
would  be  passed  would,  instead  of  helping  us,  more  likely  deliver 
us  further  into  the  hands  of  the  brotherhoods  and  unions.  I  am 
inclined  to  think  that  more  would  be  accomplished  by  endeavor- 
ing to  secure  sound  judicial  interpretations  and  applications  of 
existing  law ;  and  the  maintenance  of  the  "open  shop"  should  be 
assured. 

30 


In  paragraph  at  the  bottom  of  page  thirteen  of  "Limitations 
of  the  Right  to  Strike,"  I  notice  the  following: 

"If  industrial  conditions  of  the  future  should 
develop  the  fact  that  labor  was  being  oppressed  and 
was  not  in  such  a  position  of  strength  in  its  dealings 
with  capital  as  the  good  of  the  State  required,  the 
remedy,  it  would  seem,  should  come  from  govern- 
mental regulation  of  some  kind,  rather  than  by 
placing  in  the  hands  of  irresponsible  citizens  fur- 
ther weapons  of  aggression  through  which  they  may 
at  any  time  make  further  onslaughts  upon  the 
peace  and  prosperity  of  industry  and  even  the  State 
itself." 

The  words  underscored  strike  me  as  contemplating  the 
eventual  application  of  the  compulsory  arbitration  principle ;  with 
that  solution  of  the  problem  I  am  not  in  sympathy. 

Yours  truly, 


31 


UNIVERSITY  OF  ILLINOIS-URBANA 


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